Standing Committee B

[Mr. John McWilliam in the Chair]

Proceeds of Crime Bill

Clause 111 - Inadequacy of available amount

Amendment proposed [this day]: No. 194, in page 68, line 16, leave out 'or discharge'.—[Mr. Bob Ainsworth.] 
 Question again proposed, That the amendment be made.

John McWilliam: I remind the Committee that with this we are taking the following: Government amendment No. 195.
 Clause stand part. 
 Government amendments Nos. 261 and 262. 
 Government new clause 7—Inadequacy of available amount: discharge of order (No. 2).

Alistair Carmichael: Before I was cut off in my prime at 11.25, I was drawing the Minister's attention to subsection (2) of new clause 7, the second line of which refers to ''section (J804)''. The Committee Clerk has subsequently informed me that that should read ''section 95''. I see some hon. Members nodding and some shaking their heads; I do not know the significance of that.

Bob Ainsworth: Section 98.

Alistair Carmichael: I am obliged. Otherwise, the new clause does not make sense. I should also explain to the Committee that unfortunately—or perhaps fortunately—I have commitments in the Chamber this afternoon in respect of the fisheries debate, in which I have a substantial constituency interest, so I shall not be here later. [Hon. Members: ''Shame.''] I anticipated that reaction, especially from the hon. Member for Glasgow, Pollok (Mr. Davidson). I am sure that he will agree that this merely reinforces case for having more Scottish Liberal lawyers in the House of Commons.

John Robertson: You will be greatly missed—if not by Government Members, then by the Opposition.

John McWilliam: Order. I shall not be greatly missed. I shall be here, because the Committee could not sit without me.

Alistair Carmichael: I am greatly touched—but no doubt that that comes as news to no one.
 Amendment agreed to. 
 Amendment made: No. 195, in page 68, line 23, leave out 'discharge the confiscation order' and insert 
'vary the order by substituting for the amount required to be paid such smaller amount as the court believes is just.'.—[Mr. Bob Ainsworth.]
 Clause 111, as amended, ordered to stand part of the Bill. 
 Clause 112 ordered to stand part of the Bill.

Clause 113 - Conviction or other disposal of accused

Bob Ainsworth: I beg to move amendment No. 196, in page 69, line 4, leave out 'absconds' and insert 'is unlawfully at large'.

John McWilliam: With this it will be convenient to take Government amendments Nos. 198, 200, 201, 203, 204 and 210.

Bob Ainsworth: These are purely drafting amendments, which bring the terminology into line with part 4. They also take account of the difference in language in Scottish law compared with English law. For instance, ''abscond'' becomes ''is unlawfully at large''.

Dominic Grieve: I would like clarification. Is the change of wording from ''absconds'' to ''is unlawfully at large'' designed to reflect Scottish or English practice? I assumed that because the word ''absconds'' appeared in the original legislation, it was compatible with Scottish legal practice. Was there a drafting error in the original Bill, and is that why we are changing the wording to ''is unlawfully at large''? If not, why on earth are we making the change?

Bob Ainsworth: I am advised that the word ''absconds'' is a purely English legal term, and that the terminology in Scotland is ''is unlawfully at large''. The new wording is in line with the Scottish legal system.

Nick Hawkins: I assume that the Minister is correctly advised. However, I am puzzled because although his amendments propose to change the body of the cause, the heading for this set of clauses, which is part of the Bill rather than of the explanatory notes, would still be ''Accused absconds''. If we are making the change because Scots law does not recognise the word ''absconds'', should we not change the heading as well?

Bob Ainsworth: The hon. Gentleman may well have a point, and we will think about that. I am not sure that the word is as important in a cross-heading as it would be in the body of the clause. None the less, I thank the hon. Gentleman for pointing that out.

Mark Field: It seems to me that there is a difference of meaning. The word ''absconds'' suggests that an individual had first been arrested, while the phrase ''unlawfully at large'' suggests an individual who may not yet have been arrested. There may be a subtle difference of meaning between the two. The Minister of State, Scotland Office—who is not here at the moment—may be able to advise us whether there would be a slightly different meaning here compared with the parts of the Bill that apply to England, Wales and Northern Ireland.

Bob Ainsworth: I am not sure whether there is a difference in meaning; I do not pretend to be a linguistic expert. A person who has absconded must be unlawfully at large. Fundamentally, the terminology is the same. If the hon. Gentleman is trying to suggest that he has a greater knowledge of Scottish legal terminology than me, I certainly bow to him. I do not think that there is a difference in meaning; it is merely that different terminology is recognised in different jurisdictions.
Mr. Ian Davidson (Glasgow, Pollok) rose—

Bob Ainsworth: I give way to my hon. Friend, who will, I am sure, enlighten us.

Ian Davidson: This is, perhaps, the only time that the Committee has missed having a Scottish Liberal lawyer present—but perhaps I can explain: the term has a special definition in Pollok if a person has absconded from a drawing room.

Bob Ainsworth: I was sure that my hon. Friend would enlighten us, and I am not disappointed.

Dominic Grieve: When the Minister was asked to speak to the amendment, my initial impression was that it was a consequence of trying to bring the English and Scottish parts of the Bill into line. In fact, following close examination, it is clear that the amendment rectifies an error in the drafting of the original legislation. It will be helpful if the Minister can mention to the Committee further clauses in which this may occur, so that we know whether we are dealing with amendments that bring the law into line or original drafting errors.

Nick Hawkins: Does my hon. Friend agree that it would be helpful if the Minister and his advisers let all members of the Committee know in advance when we were to discuss amendments that correct bad or inaccurate original drafting? That would be more helpful than discovering the fact only when the Minister stands up to speak.

John McWilliam: Order. The Minister can speak only to this group of amendments, because these are the only amendments that we are discussing. If the hon. Gentleman is advising the Minister to do something when we discuss subsequent groups, that is a different matter, but I hope that he is not advising him to speak to groups of amendments that we have not reached.

Bob Ainsworth: I apologise to the hon. Gentleman. I did not try to deceive him in any way. I said that amendments had been tabled to the clause to bring it into line. He will notice that the word ''may'' is replaced by the word ''must'', and that is most important. I also flagged up the difference in terminology.

Dominic Grieve: I was not suggesting in any way that the Minister intended to deceive. We are trying to discuss a number of amendments quickly, and we know that the underlying principle is to bring the English and Scottish mandatory and discretionary requirements into line with each other. This is a mixed group of amendments, some of which seek to do that, and others of which would correct the original poor drafting.

John McWilliam: Order. I hope that nobody thought that I was accepting an intervention on an intervention just then. I had made a ruling, so I invited the Minister to speak on what was technically a point of order.
 Amendment agreed to. 
 Amendments made: No. 306, in page 69, line 10, leave out 'may' and insert 'must'. 
 No. 198, in page 69, line 14, leave out 'thinks' and insert 'believes'.—[Mr. Bob Ainsworth.]

Boris Johnson: On a point of order, Mr. McWilliam. I should be grateful for clarification of amendment No. 198.

John McWilliam: Order. That amendment has already been debated. We cannot go back to it now. It has already been accepted.

Bob Ainsworth: I beg to move amendment No. 199, in page 69, line 19, leave out '94(10)' and insert '94(11)'.

John McWilliam: With this it will be convenient to take Government amendments Nos. 211, 212, 216, 265 and 266.

Bob Ainsworth: These are purely drafting amendments. They are designed to correct erroneous cross-references. Clause 144(8) deals with tainted gifts and their recipients. Amendment No. 216 ensures that the restraint order can be obtained against the recipient of a gift at an appropriate time, and that a gift made within a six-year period will be caught.
 Amendment agreed to. 
 Amendments made: No. 200, in page 69, line 22, leave out 'an absconder' and insert 'unlawfully at large'. 
 No. 201, in page 69, line 24, leave out 'an absconder' and insert 'unlawfully at large'. 
 Clause 113, as amended, ordered to stand part of the Bill.

Clause 114 - Accused neither convicted nor acquitted

Amendments made: No. 307, in page 69, line 36, leave out 'may' and insert 'must'. 
 No. 203, in page 69, line 40, leave out 'thinks' and insert 'believes'. 
 No. 204, in page 69, line 44, at end insert— 
'(ba) section 94(11) applies as if the reference to subsection (2) were to subsection (1) of this section;''.—[Mr. Bob Ainsworth.]

Bob Ainsworth: I beg to move amendment No. 205, in page 70, line 1, leave out 'and 106' and insert ', 106, 107 and 108'.

John McWilliam: With this it will be convenient to take Government amendments Nos. 206 to 208.

Bob Ainsworth: These technical amendments are designed to align clause 114 with clause 29. Amendment No. 205 provides that a reconsideration case, as set out in clauses 106, 107 and 108, may be pursued against a person who is unlawfully at large. Amendment No. 206 provides for a reconsideration of benefit cases under clause 109 where an order previously made may be pursued against a person who is unlawfully at large. Amendments Nos. 207 and 208 are consequential.

Dominic Grieve: I would be grateful for a little more clarification. I assumed that clause 114 allowed for recovery in Scotland against someone unlawfully at large. I assume that the only changes made to the wording are formal, not some change in the nature of the Scottish court's powers. Will the Minister confirm that we are not dealing with a profound amendment?

John McWilliam: Order. It is helpful if the hon. Gentleman stands up, rather than leaning slightly forward.

Nick Hawkins: I will certainly do so, Mr. McWilliam. I agree with my hon. Friend the Member for Beaconsfield (Mr. Grieve), but an additional point occurs to me. The word ''absconds'' appeared in the draft, but the previous group of amendments changed it to ''unlawfully at large'', so I am puzzled that the words ''unlawfully at large'' appeared in the original drafting in clause 114(3)(c) and (d), but the Government, in an attempt to make that balance with clause 29 in part 2, are removing the references to ''unlawfully at large''. That reveals that the phrase ''unlawfully at large'' was used in the original draft, even though it was not used previously, and the Government have now included it. That reinforces the point made by my hon. Friend the Member for Cities of London and Westminster (Mr. Field), which concerned the difference between the meaning of ''absconds'' and that of ''unlawfully at large''.

Dominic Grieve: My hon. Friend may derive enlightenment from the explanatory notes. Before the Bill was drafted, no provision in Scottish legislation used the word, ''absconder''. Perhaps it was plucked out of English law and applied to Scotland. It was concluded that the word was unknown to Scottish law, whereas the phrase ''unlawfully at large'' was not.

Nick Hawkins: My hon. Friend is right. I have read the explanatory notes, but my point is slightly different. The Government propose to remove the phrase ''unlawfully at large'' in clause 114(3)(d). My point was that the drafter of the Bill had already used the phrase ''unlawfully at large'', even though it was not in the part of the Bill affected by the previous group of amendments and is now being put back in, for the reasons that my hon. Friend mentioned. One wonders whether the Scottish concept of ''unlawfully at large'' is the same in law as ''absconding'' in English law.

Dominic Grieve: My hon. Friend may be making a good point, and we await enlightenment from the Minister. I suspect that the phrase ''unlawfully at large'' features in provisions that would otherwise be associated with the word ''abscond'', because the terminology features in Scottish law in respect of someone who does not answer bail.

Nick Hawkins: My hon. Friend may well be right. It is unfortunate that we have temporarily lost the hon. Member for Orkney and Shetland (Mr. Carmichael). When his absence was being bemoaned by the hon. Member for Glasgow, Pollok, I noticed that another Scots lawyer on the Government Back Benches was shaking his head. The Minister may derive some support from the Scottish lawyers who are sitting behind him.

Bob Ainsworth: The hon. Member for Surrey Heath (Mr. Hawkins) said that his curiosity was outstripping his ability to analyse what I recognise as a complicated clause and complex amendments. I assure him that the terminology that continues to be used—after all the amendments—is ''unlawfully at large''. That is the terminology in Scotland. However, I can tell the hon. Member for Beaconsfield, in response to the substantive issue that he raised, that there is no difference whatever between its meaning and the meaning of the term that applies in England. Different Scottish terminology seems to apply in different parts of the country. Indeed, it has just been suggested to me that the meaning of the word ''abscond'' is more readily understood north of the border as ''doing a runnie''—I shall leave the hon. Gentleman to guess who passed me that note.

Boris Johnson: I am sorry to revert to terminology, but can the Minister elucidate the difference north of the border between the meaning of the word ''thinks'' and the word ''believes'', because—

John McWilliam: Order. We have dealt with that. We have already disposed of that issue on another group of amendments.

Nick Hawkins: On a point of order, Mr. McWilliam. The words ''thinks'' and ''believes'' both appear in clause 114. It is true that the previous group of amendments that dealt with the matter is behind us, but in a clause stand part debate, would it not be perfectly in order for my hon. Friend to explore that issue further with the Minister?

John McWilliam: Order. This is not a clause stand part debate.

Nick Hawkins: Indeed not, Mr. McWilliam.

John McWilliam: We are dealing with narrow amendments here.

Nick Hawkins: I understand that, Mr. McWilliam. I was raising a sort of point of order at this stage, to reassure my hon. Friend the Member for Henley (Mr. Johnson) that when we reach the stand part debate in a few moments, he will still have the opportunity to put his point to the Minister.

George Foulkes: Are there any fishermen in the hon. Gentleman's constituency?

John McWilliam: Seated interventions are always out of order.
 Amendment agreed to. 
 Amendments made: No. 206, in page 70, line 2, leave out 'sections 107, 108 and 109 do' and insert 
'section 109 does'.
 No. 207, in page 70, line 4, leave out subsections (4) and (5). 
 No. 208, in page 70, line 9, leave out 'Sections 107, 108 and 109 have' and insert 
'Once the accused has ceased to be unlawfully at large section 109 has'.—[Mr. Bob Ainsworth.]
 Question proposed, That the clause, as amended, stand part of the Bill.

Boris Johnson: I am grateful to you for are allowing me to return to my perplexity about the difference between the meaning of the words ''thinks'' and ''believes'', Mr. McWilliam. As I understand it, ''believes'' is the proper locution north of the border. Will the Minister explain what ''believes'' means north of the border that it does not mean south of it? I would also like to ask why we in this House are making this revision on behalf of the Scots when they could perfectly well, if they chose, do it themselves. If they prefer to use the word—

Mark Field: I wonder whether this might have something to do with the facts that the Scots are such church-going folk. To paraphrase Descartes, ''I believe, therefore I am''.

Boris Johnson: I am grateful to my hon. Friend for that important intervention, because it seems to me that if, for instance, one were to translate the Bill into French, one could perfectly well use the words ''je crois'' in either context. In Latin, one could use ''credo''—or, indeed, ''reor''—plus the accusative or the infinitive. In almost any other language known to me we would be able to find a word that could perfectly well do for both ''thinks'' and ''believes''. I am therefore in a state of complete perplexity as to exactly what the amendment seeks to produce north of the border, and I would be very grateful if the Minister could tell me.
Mr. David Wilshire (Spelthorne) rose—

John McWilliam: Order. If the hon. Member wants to debate the difference between ''suivre'' and ''être'' he can do so, but not under this clause.

David Wilshire: My hon. Friend sounds as if he is coming to the end of his peroration on this subject, so before he does, could he tell us what he believes the difference is, as well as asking the Minister for his opinion?

Boris Johnson: I am grateful to my hon. Friend for putting that further question. I just want to revert to the final question that I posed earlier to the Minister of State, Scotland Office; I do not believe that I had a reply—although it may now fall to the Under-Secretary to answer it. The question was: why are we in this House making a revision to what will be Scottish law, when the Scots could make it themselves? Not only that; they could themselves at some future date have the power to amend it. Who finally has the authority?

Bob Ainsworth: I think that we have stumbled upon something profound and potentially quite subversive. I hate to ruin the hon. Gentleman's philosophical argument about the potential difference between the way in which the Scots and the English think, and whether there is a more secular society here than exists north of the border.
 I am informed that there has been a drafting decision to replace the word ''thinks'' with the word ''believes'' throughout the Bill. I would have thought that many hon. Members would be quite concerned about how deep that kind of subversion goes, and what other legislation it has crept into. Being a fairly secular-minded person myself, I am not at all sure that I am happy with it. We need to be aware that such things may be going on. Parliamentary counsel may be undermining us, while we know nothing about what is happening to our legislation.

Mark Field: I fear that this may be a battle within the Government. It is obvious to me—new Labour thinks; old Labour believes.

Bob Ainsworth: Touché.
 That is the explanation: for whatever reason, someone has taken the decision to change the drafting of the Bill using the word ''believes'' rather than the word ''thinks''. Perhaps that person has old Labour rather than new Labour connections. We cannot say.

David Wilshire: If I understand correctly, there may be a serious point that the Minister might want to consider. If the wording is being changed throughout the Bill, has the decision been taken part way through? If so, there will be some occurrences that we have already gone beyond, and we will have to go back and change them later. It would then be genuinely helpful to have an explanation at some stage—not necessarily now—of the reasoning behind it. I would be grateful if the Minister would say that if that is happening, we could quietly reflect and have a thoughtful discussion at some stage of what it is all about.

Bob Ainsworth: No, the Bill is mostly already drafted using ''believe'' rather than ''think''. Can I suggest to the hon. Gentleman that if we want to spend a lot of time considering this issue, we may not want to do it on a Thursday afternoon when there may be more important issues to deal with.

Dominic Grieve: The Under-Secretary is right. There may be more important issues to deal with. I am a little surprised, however, that he has not been told the drafting reason for such a change. I assume that it can be summarised simply, but he does not seem to know what it is. It may be technical, or the draftsmen may have decided that they will never use the word ''think'' again. I am intrigued by the question of what prompted such a decision.

Bob Ainsworth: My curiosity does not, perhaps, reach the same level as that of the hon. Gentleman. Given that there is no fundamental difference in the outcome whichever word we use, I shall not spend much time delving into the issue.

David Wilshire: If the Under-Secretary does not think that there is any difference in the outcome, why does the change need to be made?

George Foulkes: My hon. Friend does not ''believe'' that there is any difference in the outcome.

David Wilshire: Surely the Under-Secretary agrees that there has to be an explanation. If the outcome does not matter, we should not be wasting time considering the change.

Bob Ainsworth: The hon. Gentleman is absolutely right: we should not be wasting time. The change concerns commonality of language—nothing more profound than that.
 Clause 114, as amended, ordered to stand part of the Bill.

Clause 115 - Variation of order

Bob Ainsworth: I beg to move amendment No. 209, in page 70, line 33, after 'founded', insert—
'(a) it must find the amount which should have been the amount required to be paid (taking the circumstances prevailing when the amount was found for the purposes of the order), and 
 (b) '.

John McWilliam: With this it will be convenient to take clause stand part.

Bob Ainsworth: This drafting amendment is designed to ensure that when the court varies an order under clause 115, it should determine what should have been the appropriate amount when the order was made originally. It brings the clause into line with clause 30 under part 2 of the Bill.

Dominic Grieve: That may be the purpose of the amendment but as it stands, it risks descending into farcical gobbledegook. It splits or adds to the subsection. It removes the words
''it may vary the order by substituting for the amount required to be paid such amount as it thinks is just.
 and introduces a twofold test. I assume that paragraph (b) is the immediate preface to the words ''it may vary''. Is the amendment really necessary? Perhaps it is, but I am beginning to wonder whether it just reflects the fact that the English drafting was complex.

Bob Ainsworth: The hon. Gentleman touched on the point a while ago. Under a mandatory scheme, the language needs to be more prescriptive, and he should not be surprised by that fact.

Nick Hawkins: If the Under-Secretary thinks about the way in which amendment No. 209 is drafted, he will see that Sir Humphrey Appleby would have been proud of such drafting. The proposed new subsection states:
''it must find the amount which should have been the amount required to be paid (taking the circumstances prevailing when the amount was found for the purposes of the order''.
 ''Find'' and ''found'' are in the same sentence, which is extremely inelegant. I put it no more critically than that. I can only echo the words of my hon. Friend the Member for Beaconsfield.

David Tredinnick: I am interested in what my hon. Friend is saying. I am Chairman of the Joint Committee on Statutory Instruments; that Committee regularly examines the way in which measures are drafted and may report them as defective. The drafting in this case is confusing despite a general drafting policy to ensure that we have plain English. The provision under discussion is not plain and it borders on not being English. It behoves the Minister to see if he cannot at least break the sentence up.

Nick Hawkins: I am grateful to my hon. Friend, who has experience as Chairman of a very important Committee. I served for a relatively short period, two Parliaments ago, on one of the Joint Committees with another place which dealt with the question of resolving conflicts in legislation between the two Houses. The work of that Committee overlaps to some extent with that of the Committee chaired by my hon. Friend. The Minister is talking about inserting some words after the word ''founded''. If the amendment is incorporated into the legislation, we will have three different tenses of the same verb all at once—''founded'', then ''find'', then ''found''.

David Tredinnick: We must not prolong proceedings, but is my hon. Friend familiar with fox hunting terminology? We have ''find'' and ''found'', which is the sort of language that might be used at the Master of Fox Hounds Association dinner.

Nick Hawkins: I am indeed familiar with that. I am sure that, whether they are old or new Labour, many Government Members would not want that.

David Tredinnick: My hon. Friend may find ''gone to ground'' somewhere.

Nick Hawkins: If I go too far down that route, the Chairman will find that I have ''gone away''.

John McWilliam: Order. The Chairman is about to find that—as far as I am aware—fox hunting has not been made illegal yet, so it would not arise under any part of this Bill. However, I should not anticipate too much.

Nick Hawkins: I hope that my hon. Friend the Member for Henley, the acknowledged wordsmith of this Committee, will be able to give the Committee the benefit of his understanding of a single sentence that contains ''founded'', ''find'' and ''found''. On a serious point, if the amendment does not really change the meaning, the original drafting at least has the merit of being clear. However, the change that the Government propose to introduce in clause 115 can only confuse. I hope that my hon. Friend can shed some light on the matter.

Boris Johnson: I rise to speak with great trepidation. I think that my commission was to find a sentence in which the word ''found'' was used in a not particularly well-founded way. I hope that I have just done it.

Bob Ainsworth: If all I had to look forward to was a conversation about legal issues in the drawing room when I got home, I would be as content to go around the streets and houses as Conservative Members are.
 The wording of the amendment is required. It may appear contorted, but lots of things in this place appear contorted to me. However, in relation to a returning absconder, the court needs to go back and consider what the amount should have been at the time before moving on to decide what is just in hearing his case for a variation. It is not possible simply to remove the words. That is the process that the court must go through to treat that returning absconder in a proper fashion. 
 Amendment agreed to. 
 Amendment made: No. 210, in page 70, line 34, leave out 'thinks' and insert 'believes'.—[Mr. Bob Ainsworth.] 
 Clause 115, as amended, ordered to stand part of the Bill. 
 Clause 116 ordered to stand part of the Bill.

Clause 117 - Appeal by prosecutor

Amendments made: No. 211, in page 71, line 22, leave out '(9)' and insert '(10)'. 
 No. 212, in page 71, line 34, leave out '(9)' and insert '(10)'.—[Mr. Bob Ainsworth.] 
 Clause 117, as amended, ordered to stand part of the Bill.

Clause 118 - Time for payment

Bob Ainsworth: I beg to move amendment No. 213, in page 72, line 18, at end insert—
'(5A) An order under subsection (4)— 
 (a) may be made after the end of the specified period, but 
 (b) must not be made after the end of the period of twelve months starting with the day on which the confiscation order is made.'.

John McWilliam: With this it will be convenient to take clause stand part, Government amendment No. 214 and clause 119 stand part.

Bob Ainsworth: Amendment No. 213 clarifies the time limits when the accused seeks to extend the time given for the payment of a confiscation order. Subsection (4) enables the court to make an order to extend the time for payment beyond the specified period of six months up to a maximum of 12 months. That is known as the extended period. The amendment provides that the court can make an order extending the period after the end of the six-month specified period, but not after 12 months from the date of the confiscation order. That is to ensure that the maximum time for payment is never greater than 12 months. The amendment brings clause 118 into line with clause 12.
 Amendment No. 214 temporarily suspends the application of interest to the outstanding compensation orders when an accused has made an application to the court under clause 118 for time for payment but the court has yet to determine the application.

Nick Hawkins: The clause 119 stand part debate is grouped under clause 118 because of the consequential amendments. I want to ask the Minister about clause 119 and the provisions on interest.
 Clause 119(1) is an example of inelegant and circular drafting, but I anticipate that the Minister will tell us that that is unavoidable. Subsection (2) states: 
''The rate of interest is the rate payable under a decree of the Court of Session.''
 I do not know how that operates because I am not a Scottish lawyer. I would be interested if the Minister can tell me—if he cannot do so today, perhaps he will write to me and other members of the Committee—how the rates of interest are calculated in relation to decrees of that court. What is the comparison between such rates and base rate? The Committee should have a rough idea of the rates of interest that we are considering. In English legislation, the relationship between interest and base rates is normally set out in the English statutes. That is obviously not the case in the Bill

Bob Ainsworth: We had a brief conversation about that issue when we discussed part 2. A similar provision applies in England and Wales, where the interest rates may vary from time to time. They may vary from time to time in the Scottish system as well, and they are currently set at 8 per cent.
 Amendment agreed to. 
 Clause 118, as amended, ordered to stand part of the Bill.

Clause 119 - Interest on unpaid sums

Amendment made: No. 214, in page 72, line 28, at end insert— 
'(2A) For the purposes of this section no amount is required to be paid under a confiscation order if— 
 (a) an application has been made under section 118(4); 
 (b) the application has not been determined by the court, and 
 (c) the period of 12 months starting with the day on which the confiscation order was made has not ended.'.—[Mr. Bob Ainsworth.]
 Clause 119, as amended, ordered to stand part of the Bill.

Clause 120 - Application of provisions

George Foulkes: I beg to move amendment No. 215, in page 73, line 18, leave out '214(2)(b) of the Procedure Act' and insert '118'.
 This is a drafting amendment. It replaces an obsolete reference to section 214(2)(b) of the Criminal Procedure (Scotland) Act 1995 with a correct reference to clause 118 of the Bill.

Dominic Grieve: I am intrigued by the obsolescence of the Procedure Act. It appears that the discretion it gives to a court in Scotland to extend time to pay is being replaced by a new statutory framework that is reliant on the wording of clause 118. I do not know much about the Procedure Act, which I assume relates to Scotland, but my first reaction was that I was intrigued to find out whether the discretion under section 214(2)(b) for allowing time to pay was greater or less than that allowed by clause 118. I raise that because the Government's intention, as we have discussed, is to bring Scotland in line with England, although not, I would have thought, to marry together the procedures as though they were identical. If that were the case, Scots law might as well be put in the bin.
 The Minister said that the section was obsolete, which raised the possibility that section 214(2)(b) does not exist any more. I do not know whether that is true, but I am a little surprised to learn that a provision that no longer exists has been incorporated in a Bill that was published so recently. I assume that his use of the word ''obsolete'' referred to the fact that the Procedure Act was not necessary because the provisions in clause 118, which mirror those in part 2, can be used. If so, I would like reassurance that clause 118 is not more narrowly drafted than the provision on the power of the court under the Procedure Act. If it is more narrow, I want the Minister to justify introducing in this way procedural changes that bring Scots law in line with the Bill. That is different from the debating the question of ''must'' and ''may'', which goes to the heart of the legislation and is not procedural enforcement.

John McWilliam: Before I call the Minister, I apologise for my lapse. Hon. Gentlemen may remove their jackets.

George Foulkes: I have known you for 40 years now, Mr. McWilliam, but I did not know that I could read your mind. I can read your mind better than I can read some of these notes.
 What I said earlier was not that the Procedure Act was obsolete, but that the reference was obsolete. A correct reference is to clause 118. Time for payment is open-ended under the Criminal Procedure (Scotland) Act 1995; the point of clause 120 is to tighten up the situation. I hope that that helps the hon. Gentleman.

Dominic Grieve: I hope that the Scottish Parliament and Scottish Members are aware of the extent to which, in the perfectly legitimate desire to introduce uniformity, we are not only tackling the substance of the legislation but interfering with procedural differences that may exist north and south of the border. It was right to point that out, and I will continue trying to notice when such changes occur during our scrutiny of part 2.

Nick Hawkins: Does my hon. Friend agree that, but for his intervention, no one would have known that the Minister was introducing a substantive change. Had my hon. Friend not picked that up, we would have taken the Minister's words at face value, no doubt given to the Committee in all good conscience, that this was purely a tidying-up exercise to remove something that was obsolete. There was a substantial difference between the Minister's initial remarks and what he said after my hon. Friend had picked up the point.

Dominic Grieve: I agree with my hon. Friend. In fairness to the Minister, I suspect, as in the case of so many minor amendments, that he may not have been fully aware of the impact of the change in detail, and it was simply given to him as the way in which the two parts of the Bill were brought together. That highlights the need to pick things up as quickly as possible as we go through the Bill.

George Foulkes: I am astonished that the hon. Gentleman thinks that I do not understand the impact of every one of the clauses in detail. Not all the amendments deal with the ''may'' or ''must'' issue: they do not all relate to bringing Scotland into line with England in terms of mandatory or discretionary. Many are tidying-up amendments, and we have taken the opportunity to table proposals to deal with several other issues.
 I intend to say a few additional words that may help the hon. Gentleman on clause stand part. 
 Amendment agreed to. 
 Question proposed, That the clause stand part of the Bill.

George Foulkes: The clause provides that confiscation orders shall be enforced in the same way as fines. As at present, enforcement will be carried out by the sheriff clerk—it is different in Scotland, as the hon. Gentleman will understand. Again, as at present, a term of imprisonment for default of payment of a confiscation order is served consecutively to any term of imprisonment for the offence itself.
 The provisions are important elements in the confiscation order enforcement regime. To be helpful—it says here ''If pressed'', but I shall say it without being pressed—I recognise that the position is different in Scotland from the rest of the United Kingdom. We want to achieve consistency with the present fine enforcement regime in Scotland. If a person fails to pay a fine, he serves the alternative period of imprisonment. The courts treat a confiscation order in the same way as a fine in terms of the Criminal Procedure (Scotland) Act 1995 and accordingly at present the serving of a term of imprisonment extinguishes the liability to pay a confiscation order. 
 The different provisions in that respect in parts 2, 3 and 4 reflect settled legislation in the three jurisdictions. 
 Question put and agreed to. 
 Clause 120, as amended, ordered to stand part of the Bill.

Clause 121 - Conditions for exercise of powers

Amendment made: No. 216, in page 75, line 6, leave out '(7)' and insert '(8)'.—[Mr. Foulkes.] 
 Clause 121, as amended, ordered to stand part of the Bill.

Clause 122 - Restraint orders etc

George Foulkes: I beg to move Government amendment No. 217, in clause 122, page 75, line 33, leave out 'in respect of which the order is made' and insert
'which falls within subsection (4A)'.

John McWilliam: With this we may take Government amendments Nos. 218 to 225 and clause stand part.

George Foulkes: Amendments Nos. 217 and 218 prevent funds that are under restraint from being released to pay legal expenses to defend the criminal charges in respect of which the restraint order is made or legal expenses incurred in the confiscation proceedings. Legal aid will be available in the normal way. The amendments bring clause 122 into line with clause 46 in part 2, on which we had an extensive discussion.
 Amendment No. 219 is primarily a drafting amendment, and amendments Nos. 220 to 225 are mainly drafting amendments designed to tidy up subsection (7).

Dominic Grieve: I am grateful to the Minister for his explanation. This is another area where the Bill's Scottish and English components differed. On part 2, we discussed extending legal aid and whether someone should be allowed to draw down for legal aid the sums under restraint. That was not allowed and the Minister will remember that I argued that it should be; in the Scottish system, precisely what I argued for was allowed but is now being removed. I think that I have understood correctly that that is what he is saying. The regime was quite different, yet when the Bill was presented it was suggested that the Scottish system was perfectly viable, or the Government would not have gone along with it.

Nick Hawkins: I know that we are not, at the moment, blessed with the presence of the hon. Member for Glasgow, Pollok—[Hon. Members: ''Oh yes we are.''] He has arrived on cue. You will recall, Mr. McWilliam, if you were in the Chair—and if you were not, I am sure that you will have read about it with interest in Hansard—that the hon. Gentleman was at pains to point out that no money should be spent on lawyers. He is no doubt pleased that the Minister has taken out the provisions that relate to reasonable living expenses and legal aid.
 My hon. Friend the Member for Beaconsfield is right to point out that a traditional provision under Scots law is being removed. Have Members of the Scottish Parliament fully considered that provisions for reasonable living expenses and legal aid, which have existed in Scots law for many years, are being taken away? Has the Scottish Parliament been told that an English Minister—albeit one with a Scottish constituency—is planning to do that?

John McWilliam: Order. I hope that the hon. Gentleman is not suggesting that the clauses under discussion are ultra vires to Parliament. I assure him that they are not.

George Foulkes: Some 72 Members of Parliament represent Scotland. Some of them are members of the Committee. That is deliberate: it is no accident that there are so many Scottish Labour Members on the Committee. Following the general election, there is one Scottish Tory Member, but the Opposition have not put him on the Committee. Our discussions might have been improved if they had.
 The amendment reflects the different legal aid systems in operation north and south of the border. The Bill takes account of that. Legal aid is available for restraint proceedings in Scotland. I hope that the hon. Member for Beaconsfield, at least, will understand the import of that. 
 Amendment agreed to. 
 Amendments made: No. 218, in page 75, line 35, at end insert— 
'(4A) These offences fall within this subsection— 
 (a) the offence mentioned in section 121(2) or (3), if the first or second condition (as the case may be) is satisfied; 
 (b) the offence (or any of the offences) concerned, if the third, fourth or fifth condition is satisfied.'.
 No. 219, in page 75, line 36, leave out subsections (5) and (6). 
 No. 220, in page 76, line 1, leave out from 'affect' to 'property' in line 2. 
 No. 221, in page 76, line 2, after 'under', insert 
'— 
 (a) section 9 of'.
 No. 222, in page 76, line 3, after '(c.32),', insert '(b)'. 
 No. 223, in page 76, line 3, after '(c.33),', insert '(c) Article 14 of'. 
 No. 224, in page 76, line 5, after '(N.I.17)', insert 
'(d) section 27 of the Drug Trafficking Act 1994 (c.37)'.
 No. 225, in page 76, line 5, after 'or', insert '(e) Article 32 of'.—[Mr. Foulkes.] 
 Clause 122, as amended, ordered to stand part of the Bill.

Clause 123 - Application, recall and variation

George Foulkes: I beg to move amendment No. 226, in page 76, line 14, leave out paragraph (b).

John McWilliam: With this it will be convenient to take the following: Government amendments Nos. 227 and 228.
 Clause stand part. 
 Government amendment No. 229.

George Foulkes: This is a drafting amendment. Subsection (1)(b) is redundant, as there is no order-making power in clause 122(4). Amendment No. 227 is a drafting amendment designed to make it clear that any person who is affected by the order can apply to the court to have it recalled or varied. Such persons include not only the person against whom the order was made but also a third party who may not be specified in the restraint order. A third party might, for example, have a legitimate claim to property referred to in the restraint order and might be unable to gain access to it because of the restraint order.
 Amendment No. 228 deletes subsection (11) because it is redundant, by virtue of the obligation placed on the prosecutor by subsection (3) to notify every person affected by a restraint order. Amendment No. 229 is similar to amendment No. 227, and amends clause 124 to make it clear that any person affected by a restraint order—not any person with an interest in it—can appeal to the Court of Session. I hope that that is clear.

Nick Hawkins: I have a brief, but important, point to make. My hon. Friend the Member for Beaconsfield and I, along with many other Committee members, argued for the protection of entirely innocent third parties when we dealt with earlier clauses relating to England and Wales—we will discuss Northern Ireland later. The Government ensured that those protections were voted down.
 In recent debates, the Government have made a feature of trying to bring the procedures in Scotland in line, as much as possible, with those in England, Wales and Northern Ireland. That has been the Ministers' consistent theme, and they have been supported by their Back Benchers. The Government are now proposing provisions to protect innocent third parties. It would appear that they think that such third parties need protection in Scotland but not in England. 
 That is outrageous. Perhaps there is a connection with what the Minister was saying a short while ago about the number of Scottish Labour Committee members. I agree that entirely innocent third parties in Scotland should be protected, but why should not such people receive protection in England? It is outrageous that the Government spoke against—and even voted down—our proposals to protect innocent third parties south of the border. 
 It is incumbent on the Minister to reply to that point now and subsequently to write to me—and to other Committee members—to explain what possible justification there can be for providing protections for innocent third parties north of border, given that the Government voted us down when we sought to introduce them south of the border.

George Foulkes: I do not understand that point. After the amendments are made—which I hope they will be—the situation in Scotland will be the same as in England and Wales.
 Amendment agreed to. 
 Amendments made: No. 227, in page 76, line 19, leave out 'having an interest' and insert 'affected by the order'. 
 No. 228, in page 76, line 39, leave out subsection (11).—[Mr. Foulkes.] 
 Clause 123, as amended, ordered to stand part of the Bill.

Clause 124 - Appeals

Amendment made: No. 229, in page 77, line 3, leave out 'having an interest' and insert 'affected by the order'.—[Mr. Foulkes.]

George Foulkes: I beg to move amendment No. 303, in page 77, line 7, leave out subsections (3) and (4).
 Subsections (3) and (4) are unnecessary. They are already covered by section 40 of the Court of Session Act 1998, which makes provision about the competency of appeals from the Inner House to the House of Lords. 
 Amendment agreed to. 
 Question proposed, That the clause stand part of the Bill.

Dominic Grieve: I wish to return to an important issue that was canvassed by my hon. Friend the Member for Surrey Heath. Is the change of wording to a person ''affected'' from one that has ''an interest'' simply a change in wording, or does it have an impact on the sort of person who could make the application?
 We have addressed the matter before, but in this context it refers to appeals. One can imagine circumstances in which a person affected by the order, which is how they will be referred to in the clause, is more restricted than a person who has an interest in the property. Someone might have a contingent interest in the property, which means that, although the seizure of the property at the time of the restraint order did not affect him, he had an interest in it that would have enabled him to be heard under Scots law, but not now that we are changing to the English wording, which is more restrictive. 
 I assume that that is not the case. It would be useful if we could have an assurance from the Minister. Has he received advice that we are not restricting the sort of person who can apply, especially if we are moving away from an expression that is well known in Scots law to something that is not?

George Foulkes: This is a genuine point and not just a matter of semantics. It might help the hon. Member for Surrey Heath if I make it clear that the amendment widens the category of person who can make an application, but the court will have to act in accordance with clause 134.

Nick Hawkins: I am grateful that the Minister has moderated his tone since he responded on the previous group of amendments. I spoke about an amendment grouped under the previous clause but relating to this clause, and the Minister's reply was that he did not understand my point; I think that he does now. I am concerned to protect entirely innocent third parties. We should always consider the way in which legislation might accidentally affect entirely innocent third parties. That has been a concern of mine throughout our debates.
 The Minister said earlier that the position would be absolutely the same north and south of the border. He asserts that, but the provisions for appeals in clause 124 necessarily relate to cases brought before the Court of Session, and we understand that Scots law is different. If he cannot answer in detail now, I would be grateful if he would be prepared to write to me—I do not know if other members of the Committee are interested—to set out exactly how innocent third parties will be affected by the procedure north and south of the border. That is not an unreasonable request, given that this is a Government amendment and that we are genuinely concerned about the rights of innocent third parties. I need to be reassured that my constituents will not be disadvantaged in comparison with people north of the border.

George Foulkes: It is a genuine point, and it was also raised by the hon. Member for Orkney and Shetland. The intention is that the clause should operate in the same way north and south of the border. In the light of the repetition of the question by the hon. Member for Surrey Heath, I will double-check. If there is anything different from what I have said, I will write to him. If what I have said is confirmed, I hope that he will not mind if I just leave it at that.
 Question put and agreed to. 
 Clause 124, as amended, ordered to stand part of the Bill.

Clause 125 - Inhibition of property affected by order

George Foulkes: I beg to move amendment No. 230, in page 77, line 17, leave out from ''order'' to end of line 18.
 Amendment No. 230 is similar to amendment No. 226. It is a drafting amendment that removes clause 125(1)(b), which is redundant as there is no order-making power in clause 122(4). 
 Amendment agreed to. 
 Clause 125, as amended, ordered to stand part of the Bill. 
 Clause 126 ordered to stand part of the Bill.

Clause 127 - Restraint orders: administrators

George Foulkes: I beg to move amendment No. 231, in page 78, line 36, leave out subsections (5) to (7).

John McWilliam: With this it will be convenient to take the following:
 Government amendment No. 232. 
 Clause stand part. 
 Clause 128 stand part. 
 Government amendments Nos. 233 to 239. 
 Clause 129 stand part. 
 Clause 130 stand part. 
 Government amendments Nos. 241 to 244. 
 Clause 131 stand part. 
 Government amendments Nos. 245 to 248. 
 Clause 132 stand part. 
 Clause 133 stand part. 
 Government amendment No. 249. 
 Clause 134 stand part. 
 Clause 135 stand part. 
 Government amendment No. 250. 
 Clause 136 stand part. 
 Clause 137 stand part. 
 Government amendments Nos. 268 and 305. 
 Schedule 2 be the Second Schedule. 
 Government amendment No. 304. 
 Clause 138 stand part. 
 Government amendment No. 257. 
 Government new clause 2—Seizure. 
 Government new clause 3—Recall and variation of order. 
 Government new clause 4—Appeals.

George Foulkes: My hon. Friend the Member for Stirling (Mrs. McGuire) says little in Committee, but what she does say is welcomed, because she always moves the Adjournment of the Committee. When she read that list of clauses, Government new clauses and amendments and so on, she asked me whether the provisions were controversial or just complicated. I think that they are just complicated and I hope that I am not proved wrong by Opposition Members. Let us see whether we can deal with all the provisions together, because they are technical.
 The main purpose of Government amendment No. 231 and Government new clause 2 is to provide a free-standing provision to enable constables to seize restrained property to prevent its removal from Scotland. The provisions of clause 127(5) and (6) are therefore set out in the new clause. Subsection (7) covers the right of a prosecutor or any other person affected by the appointment of an administrator to apply to the court to have the order recalled or varied. That has also been moved to a separate new clause—new clause 3. 
 Government amendment No. 232 sets out the powers to be given to management administrators. They manage property that is under a restraint order prior to a confiscation order being made. The amendment brings clause 127 into line with clause 49 in part 2, which deals with management receivers. We had a debate on that, as you will recall, Mr. McWilliam. Once a confiscation order has been made, enforcement passes to the enforcement administrator, provision for whom is made in clause 129. Schedule 2 sets out further provisions for management and enforcement administrators.

John McWilliam: Before I call the hon. Member for Beaconsfield, let me make it clear that although this is a huge group, we shall vote on the amendments only when we reach the relevant part of the Bill.

Dominic Grieve: It may be useful to get to the root of the need for the amendment. I appreciate that the Government want a similar system to operate north and south of the border. As the Minister said, that goes beyond the question of discretionary or mandatory provisions. However, a question arises about how far down that road the Committee wants to go.
 In fairness to the comments of the hon. Member for Glasgow, Pollok, he was vociferous about the differences between Scotland and England and Wales on Second Reading and when we considered part 2. He perceived that having discretionary provisions north of the border meant that there would be loopholes that criminals could exploit. As I understand it, that was his motive for saying that he did not like the system, and acting on those representations the Government went away to ensure that the Bill was brought into line north and south of the border. 
 However, it is apparent that we cannot do that in absolute terms, because if we went down that road, we would end up getting rid of the Scottish legal system, as I said. Oliver Cromwell would be triumphant at that, because I think that that is the only time in the history of these islands when Scotland and England have had an identical legal system. The Scots legal system was thrown out of the window. One reason why people are so concerned about that is that it was particularly protected under the Act of Union. 
 As the amendment is so complicated, it is difficult to extrapolate what its effect will be. Is it merely substituting the wording of the England and Wales legislation for that in Scotland or is its consequence to change how restraint orders are administered? If so, does it enhance the powers of the administrator or receiver, or does it diminish them in some way? It is extremely difficult, when one looks at amendments of this complexity, to know, in the absence of explanatory notes, what the impact will be. The Minister says that the amendment will make the procedure identical north and south of the border. I appreciate that, but the Committee should be in a position to know how, as a consequence, the original legislation for Scotland, as drafted, will be affected. I am not saying that we should not do it, but it would be useful to know the consequences.

George Foulkes: As I said, amendment No. 232 sets out the powers given to management administrators. We already have two kinds of administrator in Scotland. One is appointed pre-confiscation order and the other post-confiscation order. Currently, however, we do not call them management and enforcement administrators. The purpose is to use the same nomenclature and make their respective roles clear. I hope that that makes things much more transparent and simple.

Dominic Grieve: The Minister gives a cogent argument for the amendments. If there is a common administration system, and administrators are likely to be moving north and south of the border, having the same system will make life much simpler. That is helpful. Will he also confirm the impact in terms of powers? If there is some change, what is it?

George Foulkes: We will come to powers later in our discussion.

Nick Hawkins: I want to ask the Minister a different question, although I suspect that he will give us an answer related to tidying up. It is in relation to new clause 2 and seizure. If there is a need for tidying up and making the procedure similar north and south of the border, why is there a need for a new clause specifically related to seizure? Should that point have been addressed when the Bill was originally drafted, and if so, was it simply missed? Alternatively, are the Government substantially increasing seizure powers? The wording of new clause 2 is extraordinarily wide:
''If a restraint order is in force a constable may seize any realisable property to which it applies to prevent its removal from Scotland.''
 Is there a specific definition already in Scots law for realisable property, or do those words have their normal and natural meaning in the English language? Subsection (2) of the new clause is straightforward: it merely says that the property needs to be dealt with under the direction of the court that makes the order. 
 Will the Minister explain the specific background to new clause 2? It is unlike many of the amendments in this large group, which are clearly consequential on each other, and which attempt to bring Scots law as near as possible to English law, although, as my hon. Friend the Member for Beaconsfield pointed out, that could not be done completely without abolishing the Scots legal system. It seems to me that new provisions in relation to seizure fall into a slightly different category.

George Foulkes: So far, I have spoken only to amendments Nos. 231 and 232.

John McWilliam: Order. We are dealing with all the amendments, new clauses and clause stand parts in the group. They are all about the same thing.

George Foulkes: I cannot answer the hon. Gentleman's question in relation to new clause 2. I shall look into the matter. Perhaps I should deal with some of the other amendments in the group. I do not know whether that would be helpful.

Dominic Grieve: I appreciate the Minister's difficulty. There are a huge number of amendments. It may help that my earlier questions, and those of my hon. Friend the Member for Surrey Heath, go to the nub of the issues that we want him to clarify, unlike the amendments, which are rather technical. If that does not help him, I am happy to listen to everything that he has to say.
Mr. Foulkes rose—

Nick Hawkins: On a point of order, Mr. McWilliam. The Minister has a vast pile of speaking notes, and even though there may be an unfortunate element of tedious repetition, my hon. Friend and I believe that he needs to go through them. Each note may not be very long, some provisions may be consequential to each other, and we do not want to delay the Committee. Equally, we do not want to absolve him of his responsibility to speak to the different amendments, because the Government have an obligation to explain what they are doing.

John McWilliam: The amendments and new clauses are grouped together because, although they may relate to different clauses and add new ones, they deal with the same point. So, as is the custom, we grouped them so that we will have only one argument.

George Foulkes: Thank you, Mr. McWilliam. That is much clearer. I am getting different messages from Opposition Members. The hon. Member for Surrey Heath picked up a refrain from the hon. Member for Spelthorne (Mr. Wilshire) that he wants me to bore the Committee by bringing up every detail and every point, which I have enough information to do. The hon. Member for Beaconsfield, understandably, and in this case rightly, wants me to concentrate on the important points that he and his hon. Friends raised.

Nick Hawkins: On a point of order, Mr. McWilliam. I want to set the Minister's mind at rest. I said that I did not want to bore or delay the Committee, but he will have a speaking note on certain issues—for example, on new clause 2. My hon. Friend and I hope that whenever we raise a point that relates to an amendment or new clause in this group, he will respond to our concerns and use the relevant speaking notes.

John McWilliam: I hope that the Minister does not do that. That would be tedious repetition, because the points are all the same.

Nick Hawkins: I am trying to make the point that the Minister did not use his speaking notes at all in relation to new clause 2, because he was labouring under the misapprehension that we had not got to it. There is a separate point to be made about the new clause that he has not yet clarified.

John McWilliam: Perhaps if we can get on with the discussion of this group the Minister might enlighten us further.

George Foulkes: I am grateful, Mr. McWilliam. It would also be simpler if we did not have a scatter-gun attack of different messages from different Opposition spokesmen. I would not mind if the message was the same. I will deal with some of the substantial points that have been made.
 As the hon. Member for Surrey Heath said, new clause 2 is the same clause in principle as clause 46 in part 2 for England and Wales, which we debated. Clause 49, also in part 2, introduces a new power for management receivers to sell property to preserve its value. We also discussed that. We are following suit for Scotland in clause 129(5). On seizure, we are simply reflecting existing Scottish provision. Realisable property is defined in clause 149. I hope that that helps the hon. Member for Beaconsfield. 
 Amendment agreed to. 
 Amendment made: No. 232, in page 78, line 36, at end insert— 
'(5) The court— 
 (a) may order a person holding an interest in realisable property to which the restraint order applies to make to the administrator such payment as the court specifies in respect of a beneficial interest held by the accused or the recipient of a tainted gift; 
 (b) may (on the payment being made) by order transfer, grant or extinguish any interest in the property. 
 (6) The court must not— 
 (a) confer the power mentioned in subsection (1) to manage or otherwise deal with the property, or 
 (b) exercise the power conferred on it by subsection (5), 
 unless it gives persons holding interests in the property a reasonable opportunity to make representations to it. 
 (7) The court may order that a power conferred by an order under this section is subject to such conditions and exceptions as it specifies. 
 (8) Managing or otherwise dealing with property includes— 
 (a) selling the property or any part of it or interest in it; 
 (b) carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property; 
 (c) incurring capital expenditure in respect of the property. 
 (9) Subsections (1)(b) and (5) do not apply to property for the time being subject to a charge under— 
 (a) section (9) of the Drug Trafficking Offences Act 1986 (c.32); 
 (b) section 78 of the Criminal Justice Act 1988 (c.33); 
 (c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 1990/2588 (N.I. 17)); 
 (d) section 27 of the Drug Trafficking Act 1994 (c.37); 
 (e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).'.—[Mr. Foulkes.]
 Clause 127, as amended, ordered to stand part of the Bill. 
 Clause 128 ordered to stand part of the Bill.

Clause 129 - Confiscation order made: administrators

Amendments made: No. 233, in page 79, line 21, at end insert— 
'(3A) An appointment of an administrator may be made subject to conditions or exceptions.'.
 No. 234, in page 79, line 23, leave out 'under section 127 or'. 
 No. 235, in page 79, line 25, leave out from 'property' to end of line 26. 
 No. 236, in page 79, line 26, at end insert— 
'(aa) power to manage or otherwise deal with the property;'.
 No. 237, in page 79, line 39, leave out 'an administrator referred to in subsection (4)' and insert— 
'the administrator'.
 No. 238, in page 80, line 2, after 'subsection (5)', insert '(aa) or'. 
 No. 239, in page 80, line 7, at end add— 
'(11) Managing or otherwise dealing with property includes— 
 (a) selling the property or any part of it or interest in it; 
 (b) carrying on or arranging for another person to carry on any trade or business the assets of which are or are part of the property; 
 (c) incurring capital expenditure in respect of the property. 
 (12) The court may order that a power conferred by an order this section is subject to such conditions and exceptions as it specifies. 
 (13) Subsections (5) does not apply to property for the time being subject to a charge under— 
 (a) section 9 of the Drug Trafficking Offences Act 1986 (c.32); 
 (b) section 78 of the Criminal Justice Act 1988 (c.33); 
 (c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 199/2588 (N.I. 17)); 
 (d) section 27 of the Drug Trafficking Act 1994 (c.37); 
 (e) Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).'—[Mr. Foulkes.]
 Clause No. 129, as amended, ordered to stand part of the Bill. 
 Clause No. 130 ordered to stand part of the Bill.

George Foulkes: On a point of order, Mr. McWilliam. I think that amendments Nos. 240 and 268 refer to clause 130.

John McWilliam: Amendment No. 240 refers to clause 130. That is why I was concerned that the Government voted for the clause, but they have done it now.

George Foulkes: I was waiting—

John McWilliam: Order. The clause has gone through. Amendment No. 240 was not selected because it was a wrecking amendment that would have destroyed the clause. Unfortunately, the clause has gone through and has been ordered to stand part of the Bill. It will have to be dealt with when the Bill reaches a later stage.Clause 131 Discharge

Clause 131 - Discharge

Amendments made: No. 241, in page 80, line 20, after 'property', insert '(the management administrator)'. 
 No. 242, in page 80, line 22, leave out 'first mentioned' and insert 'management'. 
 No. 243, in page 80, line 24, leave out '130' and insert '127'. 
 No. 244, in page 80, line 25, leave out 'administrator appointed under section 127' and insert— 
'management administrator'.—[Mr. Foulkes.]
 Clause 131, as amended, ordered to stand part of the Bill.

Clause 132 - Application of sums by administrator

Amendments made: No. 245, in page 80, line 31, leave out '127 or'. 
 No. 246, in page 80, line 35, leave out '127 or'. 
 No. 247, in page 81, line 17, at end insert— 
'(6A) The administrator applies sums as mentioned in subsection (3)(c) by paying them to the appropriate clerk of court on account of the amount payable under the order.'.
 No. 248, in page 81, line 33, leave out '(1) of'.—[Mr. Foulkes.] 
 Clause 132, as amended, ordered to stand part of the Bill. 
 Clause 133 ordered to stand to part of the Bill.

Clause 134 - Powers of court and administrator

Amendment made: No. 249, in page 83, line 12, leave out 'realised' and insert 'sold'.—[Mr. Foulkes.] 
 Clause 134, as amended, ordered to stand part of the Bill. 
 Clause 135 ordered to stand part of the Bill.

Clause 136 - Protection of persons affected

Amendment made: No. 250, in page 84, line 1, leave out paragraph (c).—[Mr. Foulkes.] 
 Clause 136, as amended, ordered to stand part of the Bill. 
 Clause 137 ordered to stand part of the Bill

Schedule 2 - Administrators: further provision

Amendments made: No. 268, in page 260, line 22, at end insert— 
'(15A) An administrator may— 
 (a) enter any premises; 
 (b) search for or inspect anything authorised by the court; 
 (c) make or obtain a copy, photograph or other record of anything so authorised; 
 (d) remove anything which the administrator is required or authorised to take possession of in pursuance of an order of the court.'.
 No. 305, in page 261, line 29, at end insert— 
'(8) In this paragraph, the reference to an administrator is to an administrator appointed under section 129(3).'—[Mr. Foulkes.]
 Schedule 2, as amended, agreed to.

Clause 138 - Administrators: restriction on

Amendment made: No. 304, in page 84, line 9, leave out '127 or'.—[Mr. Foulkes.] 
 Clause 138, as amended, ordered to stand part of the Bill.

Clause 139 - Serious default

George Foulkes: I beg to move amendment No. 251, in page 84, line 37, leave out 'any' and insert 'the'.

John McWilliam: With this it will be convenient to take the following: Government amendment No. 252.
 Clause stand part.

George Foulkes: Amendment No. 251 is purely a drafting amendment, which is designed to clarify that, in relation to the serious default provisions set out in clause 139, it is the criminal investigation into the offence that is relevant. Amendment No. 252 makes it clear that compensation under clause 139 in part 3 will be paid in Scotland only as a consequence of serious default under part 3, and not part 2. Compensation for serious default in Scotland will be paid by the Scottish authorities. Compensation for serious default in England and Wales, under part 2, will of course be paid by the English authorities.

Dominic Grieve: It is not always easy to follow the impact of some of the amendments. In respect of amendment No. 252, is the effect to which the Minister referred its only one? Alternatively, does it affect the type of default for which compensation would be payable?

George Foulkes: As I said, the amendment is designed to clarify that, in relation to the serious default provisions set out in clause 139, it is the criminal investigation into the offence that is relevant. Therefore, it does not the change the definition.

Nick Hawkins: I have a slightly different point to make briefly under clause stand part. The Minister will be able to enlighten me about which of the England and Wales provisions that we dealt with earlier the clause mirrors. At that time, I inadvertently missed the opportunity to voice my concern that there was a difference in relation to which arm of state funding would pay compensation. Under the England and Wales compensation provisions, police authorities in England and Wales might face compensation bills, whereas in all the other parts of those provisions central funding from the state would pay compensation. Does the same problem exist in Scotland?
 Under subsection (9)(a), police authorities would pay compensation. As my hon. Friend the Member for Spelthorne and I, as Surrey Members, are well aware, the Government have failed in the past to compensate Surrey police authority properly—despite public promises to do so—for the enormous extra policing costs imposed on it by the Home Secretary in relation to General Pinochet's house arrest. If a large compensation claim were made against a Scottish police authority, would council tax payers in that part of Scotland suffer extensively because of Government failure to compensate police authorities fully for extra costs—

David Tredinnick: Will my hon. Friend go back two spaces, as if we were playing snakes and ladders—we might do so this afternoon—and consider the unique situation in Surrey? It is, of course, policed by two forces—the Surrey constabulary and the Metropolitan police—

John McWilliam: Order. We are debating compensation and Scottish police. We are not debating Surrey police.

Nick Hawkins: If I may, without contravening your ruling, Mr. McWilliam—

David Tredinnick: On a point of order, Mr. McWilliam. Was I not on my feet, and did I not, in deference to you, sit down? Am I now able to resume my position?

John McWilliam: The hon. Gentleman is quite right.

David Tredinnick: I know that you are a stickler for points of order, Mr. McWilliam, so I would not want to be out of order by not getting to my feet again, which I now am, of course.
 I was coming to the point that you were trying to steer me towards, Mr. McWilliam, which is the comparison of the situation in Surrey and Scotland. The unique situation in Surrey has a bearing on the Scottish situation. In the English illustration of a potential Scottish problem, is there a difference in the way in which matters are handled in the area that is one horse ride from Charing cross—the traditional boundary of the Metropolitan police—and the area of Surrey constabulary? I understand from my researchers that Elmbridge— Mr. Davidson: Will the hon. Gentleman give way?

David Tredinnick: I cannot technically give way because I will be called to order. Perhaps I am able to give way—

John McWilliam: Order. The hon. Member for Glasgow, Pollok is trying to intervene on an intervention, albeit an extremely long one that should be brought to a close.

Nick Hawkins: I do not want to try your patience, Mr. McWilliam, by responding in detail, but I am grateful to my hon. Friend, because my hon. Friend the Member for Spelthorne and I are aware of the matter. The position has been complicated in my area by the transfer of some of the parts that used to be policed by the Metropolitan police to Surrey police.
 The Scottish provisions attempt to mirror the English provisions. I am gravely worried because under the English provisions the financial burden will fall on the police authority through one part of the compensation provisions. However, for all the other provisions, the burden falls on central funds. When money comes from central funds, the residents of a particular area—north or south of the border—do not suffer. However, when the police authority pays, such residents might suffer. 
 We have already experienced, south of the border, what happens when an unusual cost falls on a police authority. That occurs even if a Cabinet Minister has promised that costs will be refunded. The chief constable of Surrey police, Surrey Members and myself went to see the then Home Office Minister, the right hon. Member for Norwich, South (Mr. Clarke), and told him that we knew that the then Home Secretary had appeared on the media to say, ''Surrey will not lose out, you will be fully compensated.'' That did not happen. Surrey received a part payment rather than a full payment. That is the situation today. 
 When we examine the provisions, Scottish Members may find that if a large compensation order falls on their police authority, they and other hon. Members will need to know whether the Government will stand behind the police authority and compensate it. Would it not be better for all the provisions to be even-handed with compensation paid from central funds rather than by police authorities? Subsection (9)(c) states that compensation is payable by the Lord Advocate—that is central funds. Compensation paid by commissioners of Customs and Excise comes from central funds. That does not occur if the police authority pays compensation. 
 I think that the council tax payers who are represented by Scottish Members may have a problem because they may lose out unless the Minister is prepared to say publicly and at the Dispatch Box—unlike the previous Home Secretary's views, which were advanced on the media and were therefore not binding—that central funds will stand behind police authorities so that they do not lose out. I hope that my hon. Friend the Member for Spelthorne will reinforce that point in a moment.

David Wilshire: The stand part issue—rather than the Government's specific amendments—worries me. If I understand the matter correctly, all three conditions must be met. If that is so, the requirements before relief is given are excessive. Satisfaction of any one requirement may well be adequate. There is justification for saying that someone who suffered a loss prior to a not guilty verdict should be reimbursed. Compensation must be payable.
 We have had this debate before, so I shall not try your patience, Mr. McWilliam. The example used earlier is highly relevant. If an item of more than merely monetary value is disposed of before a not guilty verdict is passed, compensation, as well as reimbursement, should be payable. A wrongdoing on the part of an investigator need not occur before compensation is payable. 
 I am concerned as to why the Government consider it necessary for all three conditions to be met. I should expect the clause to state that compensation is payable if any of the conditions is met. I would be interested to hear the Minister's view on that. 
 Subsection (3)(b) mentions a defendant who is pardoned. Clearly, if someone is acquitted, those powers should kick in. I understand that. I appreciate the Government's argument in a case in which a defendant's conviction is overturned on appeal, but in order to be pardoned—I speak as a non-lawyer and may be wrong—a person must first be guilty. A pardon is not the same thing as a successful appeal. 
 A pardon is a label: a pardoned person has committed a crime but has been let off. I am not persuaded that such a person should be entitled to the same consideration and compensation as an innocent person. I should be interested to hear the Minister's justification. If I am right, I hope that it is noticed that I am arguing for the legislation to be tightened up, not weakened. In my understanding, a pardoned person is still a criminal. 
 Subsection (4)(a) makes reference to 
''a serious default by a person''.
 Subsection (9) lists the relevant persons. If a police officer commits a serious default, the claim will be made against the police authority, I assume. I would be grateful if the Minister would confirm that. Is it likely that the person held liable will have to pay compensation, as well as the authority that employs that person? It would be helpful to know where a claim must be directed. Are both parties liable, or just the person, or just the employer? In principle, I agree with the provisions, but I would like clarification on the matter before we decide whether the clause should stand part of the Bill.

George Foulkes: Once again, we are receiving mixed messages from Opposition Members. The hon. Member for Surrey Heath is worried about the burden on the taxpayer, but the hon. Member for Spelthorne is concerned that three conditions must be met, and wants it to be necessary to meet only one condition. Those two opinions seem to be contradictory.

David Wilshire: I would be grateful if the Minister would explain that contradiction. It is possible to want to see justice done through the Bill and also to feel concern for the taxpayer—the two are not mutually exclusive.

George Foulkes: They certainly seem mutually exclusive to me. As we have moved to a clause stand part debate, I shall explain that we have debated clause 72, in part 2, which relates to England. Clause 72 provides for compensation to be paid to suspects, the accused and recipients of tainted gifts who suffer loss. Compensation is payable only when an investigation has started but proceedings are never brought against the person, or when the accused is not convicted of an offence, or when the
''conviction is quashed or he is pardoned''.
 In all cases, there must have been a ''serious default'' on the part of one or more of the enforcement authorities specified under subsection (9). 
 The restriction to serious default cases is based on the principle that the restraint and the realisation of property is ancillary to a criminal trial in the same way as the detention of a person pending trial. In neither case is compensation paid on acquittal as a matter of course. 
 Clause 139 deals with Scotland. It is based largely on existing legislation, except that it has been extended to cover the situation when an investigation is started but proceedings are never brought. Under the Bill, it will be possible for a restraint order to be made as soon as a criminal investigation has been started. At present, that is possible only when proceedings have been started or are about to be started. In future, compensation will be payable subject to the current criteria, including the serious default test, from the beginning of an investigation, not only when proceedings have started. The compensation provision under the clause will help to ensure that the confiscation scheme represents a proportionate and balanced package. 
 The hon. Member for Surrey Heath asked who should pay the compensation. Ultimately, it will be the taxpayer. We believe that it should come out of the account of the police force because the accountability rests with the police force. That is important. The police are taking the action and they should be accountable for it. As for the Scottish provision, in light of the points that have been raised, we will consider—as we have agreed to consider in relation to England under part 2—whether compensation will be also be payable when there is serious default on the part of an administrator in Scotland. I hope that I have been helpful to the Committee.

David Wilshire: I am grateful to the Minister for responding to some of the issues that I raised, but unfortunately, while replying to my original questions, he drew attention to another point. His reference to serious default sounded remarkably like the same issue that worried me this morning. Default in such circumstances means that someone has suffered an injustice. The Government are saying that, if the default were serious, they would deal with it, but that if it were minor, they would not deal with it.

John McWilliam: Order. The Committee has already dealt with that under clause 72.

David Wilshire: On a point of order, Mr. McWilliam. We dealt previously not with default but with a different issue.

John McWilliam: Order. I am not talking about what happened at this morning's sitting. Clause 72 dealt specifically with default.

Nick Hawkins: I understand the Minister's point about accountability, but he has not really dealt with my worry. I accept that clause 139 mirrors clause 72. I found the provision, shortly before he referred to it, when I was searching through the Bill to find the reciprocal provision for England and Wales. He did not respond to my point in relation to the Lord Advocate or the commissioners of Customs and Excise, and to compensation coming from central funds. A problem arises with police authorities because taxpayers' money comes to them as a ring-fenced budget that is not to be exceeded. If a large compensation claim were made against one particular police authority and it had to pay the claim from one year's budget, that could severely restrict its operational effectiveness. It would not have enough money for other matters. That does not apply to the Lord Advocate or to the commissioners of Customs and Excise because of the central funds standing directly behind them. Furthermore, the taxpayer does not always stand behind police authorities with delegated budgets. A lump sum could be given to a particular police authority, whether in Scotland or in England, and a large claim could affect its operational effectiveness.
 Concerns have been expressed. Police authorities north and south of the border have been affected by exceptional costs in the past. After the Lockerbie disaster, the police authority for that area of Scotland incurred high costs. On that occasion, the Government, rightly, provided an exceptional payment to cover those extra costs. It would be helpful if the Minister would state that, were there to be a big compensation claim, the Government would stand behind the police authority concerned and ensure that other policing expenditures were not affected.

George Foulkes: That is a spurious parallel. Nobody has suggested that the police in Dumfries and Galloway were in any way responsible for the Lockerbie disaster. We are talking about accountability—about people thinking carefully before they make decisions and take actions. There is a big difference between compensation for serious default and the operational costs incurred by a police force as a result of an incident such as the Lockerbie disaster. With regard to accountability, it is important to remember that central Government funds are finite, as are those of the Lord Advocate—and as are those of police authorities.
 Amendment agreed to. 
 Amendment made: No. 252, in page 85, line 4, leave out from 'Part,' to end of line 6.—[Mr. Foulkes.] 
 Clause 139, as amended, ordered to stand part of the Bill. 
 Clauses 140 to 143 ordered to stand part of the Bill.

Clause 144 - Tainted gifts and their recipients

George Foulkes: I beg to move amendment No. 253, in page 88, line 8, leave out 'there are' and insert
'his particular criminal conduct consists of'.

John McWilliam: With this it will be convenient to discuss Government amendments Nos. 254 to 256 and clause stand part.

George Foulkes: These are drafting amendments that bring the terminology into line with that which is employed in clauses 77 and 78 of part 2.
 The clause deals with tainted gifts. Amendment No. 252 makes it clear when gifts are caught by the Bill. Amendments Nos. 254 and 255 correct erroneous cross references. Amendment No. 256 brings clause 144 in line with clause 78(2) in part 2.

Dominic Grieve: This brings us back to a topic that was recently under discussion. That discussion prompted the Minister to assure me that he would reconsider the matter in general, and I assume that that assurance applies as much to the Scottish provisions as it does to those in England and Wales. I am now sure that that is the case, as I see that he is nodding.
 However, I am puzzled about the original wording of subsection (10)(b), and the change to bring it in line with the new provisions. I wish the Minister to explain why that difference existed in the first place. Although—acting perfectly properly—he glossed the question by saying that he is merely bringing the one in line with the other, the original Scottish wording, which we are now deleting, introduced quite a substantial difference in the way in which property was valued, for the purpose of determining the share of the property transferred. Under the original Scottish scheme, the denominator of the fraction that goes to make up the value was the consideration provided by the accused at the time that he obtained the property, whereas the English scheme referred to the value of the property at the time that it was obtained. 
 For once, I think that the English scheme may have been preferable, because it is unclear—especially when dealing with property that may belong to criminals—what the considerations would have been to obtain the property in the first place. However, I want to leave that point aside for the moment. 
 Let us assume that the property had been purchased. The English scheme puts the market value on the property, as externally assessed. The Scots were content, for a long period and apparently without difficulty, to put a value on the property based on the actual consideration that the accused provided for it. That could have profound implications on shares and valuations in property. I am interested to hear from the Minister why the Scottish system had that terminology and how it worked in practice compared with the English system.

George Foulkes: That is an interesting question, and as the hon. Gentleman was raising it, I was thinking about it. In England and Wales, we have changed the wording. The old legislation was the same as the Scottish legislation and referred to the consideration. I ask him to think about the matter. The denominator is the value of the consideration provided by the accused. What if he stole it?

Dominic Grieve: Precisely.

George Foulkes: So if we say the denominator is the value of the property when the accused obtained it, we still have the value, even if it was obtained without his providing a consideration.

Dominic Grieve: The Minister is right. That is why, when prefacing my remarks, I said that the English system may be preferable. I accept that some criminal property may have been obtained for no consideration whatever. However, in cases when consideration had been paid, the possibility arises for a defendant to pay what he considers to be the genuine market value, which may differs from an external valuer's valuation, so that there are two different figures. I am not aware of the Scottish system, as reflected in the clause, having previously caused problems for the courts. It was a probing amendment, especially in the light of the wider issues in respect of the valuation of tainted gifts.
Mr. Davidson rose—

Dominic Grieve: I cannot give way. I am making an intervention.

George Foulkes: The new wording is better than the old wording. I am glad that the hon. Gentleman raised that matter, because it has livened up a dull Thursday afternoon.

Ian Davidson: The point that I had hoped to raise in an intervention relates to the price paid and the valuation. I am thinking about Sotheby's, which is particularly appropriate at the moment. On Tuesday, the hon. Member for Beaconsfield advertised Sotheby's. He said:
''A defendant obtains £1 million as the proceeds of crime. On the advice of Sotheby's, he purchases a painting that he believes is worth £1 million.''—[Official Report, Standing Committee B, 4 December 2001; c. 478.]
 Was the hon. Gentleman aware that a member of Sotheby's staff currently faces jail over a commission-fixing scandal? Would that affect his view whether—

John McWilliam: Order. The hon. Gentleman made an interesting point but it is irrelevant to this part of the Bill. As far as I am aware, the gentleman concerned is not resident in Scotland.
 Amendment agreed to. 
 Amendments made: No. 254, in page 88, line 23, leave out '(8)' and insert '(9)'. 
 No. 255, in page 88, line 26, leave out '(8)' and insert '(9)'. 
 No. 256, in page 88, line 27, leave out 'consideration provided by the accused' and insert 
'property at the time the accused obtained it'.—[Mr. Foulkes.]

Clause 145 - Value: the basic rule

Amendment made: No. 257, in page 88, line 37, after 'time' insert 
'ignoring any charging order under a provision listed in subsection (3A). 
 (3A) The provisions are— 
 (a) section 9 of the Drug Trafficking Offences Act 1986 (c.32); 
 (b) section 78 of the Criminal Justice Act 1988 (c.33); 
 (c) Article 14 of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990 (S.I. 199/2588 (N.I. 17)); 
 (d) section 27 of the Drug Trafficking Act 1994 (c.37); 
 Article 32 of the Proceeds of Crime (Northern Ireland) Order 1996 (S.I. 1996/1299 (N.I. 9)).'.—[Mr. Foulkes.]
 Clause 145, as amended, ordered to stand part of the Bill. 
 Clause 146 ordered to stand part of the Bill.

Clause 147 - Value of tainted gifts

George Foulkes: I beg to move amendment No. 258, in page 89, line 28, leave out subsections (3) and (4).
 Clause 147 deals with the value of tainted gifts. The amendment will delete subsections (3) and (4) because they are inconsistent with the rules about the value of tainted gifts in subsections (1) and (2). It will bring clause 147 in line with clause 81 in part 2.

Dominic Grieve: Perhaps I will not talk as quickly as the Minister. The subject is of legitimate wider interest to the Committee and I am intrigued about the way in which the Scottish system operated. The situation is rather like looking at a priceless work of literature that is about to be burned and wondering whether there is any use that can be derived from it before it goes and we would have to go into the deep archives to resurrect it. [Interruption.]

John McWilliam: Order. Conversation is breaking out in the Committee. Some hon. Members are getting demob happy. I tell the hon. Member for Beaconsfield that I have read more interesting priceless works of literature than this Bill.

Dominic Grieve: Subsection (3) states:
''Where the recipient of a tainted gift of money shows, on the balance of probabilities, that all or any part of the money has not been used to purchase goods or services or to earn interest or any other return, the value of the gift or, as the case may be, that part of it is to be taken as the face value of the money or part of the money.''
 Although that is bizarrely worded, it suggests that the Scots have a system in which, if a person received a tainted gift—we discussed this matter at great length on Tuesday—they would not to have to make good the shortfall at the time that the gift was handed back. I may be wrong about that, but it would happen if subsection (3) were not deleted. Could that assist us when we consider ways in which to improve the Bill, which the Minister has undertaken to do?

[Mr. Ian Davidson in the Chair]
 Similarly, subsection (4) states: 
''In deciding the value of a tainted gift the court may disregard the amount, or part of the amount, of the gift if it considers it improbable that the amount or part could be realised.''
 That is an added protection for the recipient of a tainted gift when a valuation is made. 
 I ask the Ministers to consider whether this little bit of Scottishness that is about to be disposed of could assist us in examining how we may temper the full force and rigour of the law on tainted gifts. I am conscious that I may not have fully understood the purpose of subsections (3) and (4). However, it would be useful for us to pause and consider the matter before the subsections disappear.

Nick Hawkins: I simply follow up what my hon. Friend said. I have compared clauses 81 and 147. When the Minister responds, will he expand on what he said when he moved the amendment?[Mr. John McWilliam in the Chair]

[Mr. John McWilliam in the Chair]
 The Minister said that subsections (3) and (4) must be removed because they are inconsistent with subsections (1) and (2). If that is the case, I do not understand what subsections (3) and (4) were doing in the Bill in the first place. If they were already inconsistent with subsections (1) and (2), we are not simply tidying up, and nor are we moving the Scottish system back towards the English system. He seems to be saying that subsections (3) and (4) should never have been in the Bill in the first place. There are no equivalent subsections in clause 81, either. Either subsections (3) and (4) should never have been included, or there is a more expansive explanation than the one that the Minister has given. My hon. Friend the Member for Beaconsfield is right to think that there is more to the matter than mere inconsistency; we may be about to lose what my hon. Friend rightly calls a little piece of Scottishness. [Interruption.]

Ian Davidson: I really do not know why the Chairman allowed you to speak on this subject. You seem to be belabouring the point about Scottishness that the hon. Member for Beaconsfield made so much work of earlier. The fact that the Scottish legal system was written so strongly into the Act of Union is one of the earliest and best examples of the self-interest of the Scottish lawyers who determine public policy. That is not necessarily something to be commended.

Nick Hawkins: The hon. Gentleman has, unwisely, repeatedly referred to the Chairman. He probably meant me, not the Chairman, when he used the word ''you''.

John McWilliam: Order. I think that the hon. Gentleman was referring to himself.

Nick Hawkins: He said that he did not know why the Chairman allowed me to speak, and subsequently referred to ''you''. I think that he was referring to me then, and not to you, Mr. McWilliam. In a sedentary comment, my hon. Friend the Member for Beaconsfield rightly said just now that the hon. Member for Glasgow, Pollok (Mr. Davidson) could be described as a little piece of Scottishness himself.

George Foulkes: The previous few exchanges were almost as confusing as the reason why the content of subsections (3) and (4) is included in clause 147 but not in clause 81. We are certainly not burning books. In fact, as Christmas is approaching I was delighted to see that the hon. Member for Henley is signing copies of his book. I hope that there will be presents for all of us.

Mark Field: I fear that if my hon. Friend were to give all of us copies, he would have to double the print requirement.
Mr. Foulkes rose—

Nick Hawkins: Will the Minister give way?

George Foulkes: If the hon. Gentleman can better that intervention, I shall certainly give way to him.

Nick Hawkins: On a visit to my local bookshop in Camberley, I noticed that there was only one copy left of the excellent book written by my hon. Friend the Member for Henley. On a second visit, even that last copy had gone. Contrary to the belief of my hon. Friend the Member for Cities of London and Westminster, my hon. Friend's great work is undoubtedly becoming a bestseller.

John McWilliam: Order. For the sake of clarity, is the hon. Gentleman telling the Committee that he did not buy the book himself?

George Foulkes: We hope that if we do receive the books, they will not be tainted gifts—I said that just to prove that the discussion is in order, Mr. McWilliam.

Ian Davidson: I hope that the hon. Member for Henley is not signing his books before he colours them in.

George Foulkes: I think that we have exhausted that topic.
Mr. Johnson rose—

John McWilliam: I call the hon. Member for Henley. I shall be intrigued to see how he keeps his comments in order.

Boris Johnson: I am grateful to the Minister for giving way to me—and for promoting my book in this distinguished Committee. It is available at £14.99, but I shall offer it to the Minister as a Christmas present if he can explain, in simple English, what subsection (3) means, why it is there, and why he now proposes to remove it. If he can do that in two succinct paragraphs—

John McWilliam: Order. I hope that the hon. Gentleman was not implying that the Committee is available for £14.99.

George Foulkes: The hon. Member for Henley is offering a tremendous incentive, but I am afraid that I am going to fail the test, so I shall have to find £14.99 and buy a copy of the book. I hope that he will sign it, none the less.
 My spies—the people who have been pursuing the matter on my behalf—tell me that subsections (3) and (4) have been included because they were in previous Scottish legislation, and for no other reason, whereas clause 81 follows previous English legislation. We should delete the two subsections, but, in the spirit of Christmas, I shall make an offer to the hon. Member for Beaconsfield: I shall revisit the matter as part of our reconsideration of how to deal with gifts, which we promised when we were discussing part 2.

Dominic Grieve: I am grateful to the Minister. That is all I wanted. When he does that, will he ask his officials what subsections (3) and (4) were designed to achieve? Will he let me, and even my hon. Friend the Member for Henley, know the answer? My hon. Friend might then repent, and decide to give him the book after all.

Boris Johnson: Or include him in my next book.

Dominic Grieve: If he told us, it would also be helpful if we are to consider how to improve this part of the Bill.

George Foulkes: Now I really have an incentive. What kind of books does the hon. Member for Henley write? I would like to know before I appear in them. We need to resolve this mystery. I would find it interesting to do so, as would the hon. Member for Beaconsfield and some of our officials. Let us see if we can find out, and I shall enlighten the Committee in writing, or orally on a subsequent occasion.

Nick Hawkins: When the Minister was musing about what sort of book my hon. Friend writes, it occurred to me that, as my hon. Friend's excellent tome was called ''Friends, Voters and Countrymen'' the next one should be called ''Ministers, Officials and Committee Members''.
 Amendment agreed to. 
 Clause 147, as amended, ordered to stand part of the Bill. 
 Clause 148 ordered to stand part of the Bill.

Clause 149 - Realisable property

George Foulkes: I beg to move amendment No. 259, in page 90, line 9, leave out subsection (2).
 With some trepidation, I say to the Committee that the amendment is designed to simplify the definition of realisable property and brings it into line with that to be used for England and Wales in clause 83.

Dominic Grieve: That may be so. However, the removal of subsection (2) will, again, widen the definition of realisable property. In particular, it will enable the clause to bite on property held in trust by the accused or the recipient of a tainted gift. Again, I do not expect the Minister to be in a position to enlighten the Committee further now, but this seems to be another area in which Scots law was different and provided a greater degree of protection. It would therefore be useful to know what the provision was designed to achieve, as, unless I am mistaken, it does not appear in the English section. I think that it was designed to protect certain interests held in trust. I presume that there was thought to be a good reason for doing that in Scots law—I see that a note is being passed to the Minister.

Nick Hawkins: Before the Minister responds, I have a separate point to make in relation to what my hon. Friend has just said. Clearly, the Minister intends to be helpful in trying to make the Scottish provisions mirror the English provisions. I see immediately that getting rid of subsection (2) will make the provisions of the clause exactly the same as those of clause 83. However, subsection (2)(b) refers back to what previously existed under part 2 of the Bill, and I am concerned about getting rid of it. Are the Minister's officials confident that we are simply bringing Scots law into line with English law? I fear that we might be losing a helpful reference back, because subsection (2)(b) refers to all of part 2, and to how the clause relates to restraint orders. It might be sensible to get rid of subsection (2)(a), but is the Minister confident that we would not lose something useful if we lost paragraph (b)?

George Foulkes: I will start by making a general point with regard to the concerns of the hon. Member for Beaconsfield about the integrity of Scots law. That has been taken into account. Officials from the Scottish Executive Justice Department and the Crown Office have been involved, with Home Office officials, in the drafting of the amendments.
 I wish to pay tribute to all of them. They have worked hard. The amendments have been drafted and tabled, and the notes have been provided—as Committee members have noticed—for my hon. Friend the Under-Secretary and myself very quickly, after the Government decided to alter part 3. 
 I can answer a question asked by the hon. Member for Beaconsfield by saying that where property is held in trust, someone else will have an interest, and people with interests are safeguarded elsewhere in the Bill. The hon. Member for Surrey Heath asked, in relation to the point that he raised, whether we are confident. We are confident. 
 Amendment agreed to. 
 Clause 149, as amended, ordered to stand part of the Bill.

Clause 150 - Property: general provisions

George Foulkes: I beg to move amendment No. 260, in page 90, line 31, leave out paragraph (f) and insert—
'(f) references to an interest, in relation to land in England, Wales or Northern Ireland, are to any legal estate or equitable interest or power; 
 (g) references to an interest, in relation to land in Scotland, are to any estate, interest, servitude or other heritable right in or over land, including a heritable security; 
 references to an interest, in relation to property other than land, include references to a right (including a right to possession).'.

John McWilliam: With this we may discuss clause stand part.

George Foulkes: The amendment expands on, and clarifies, what is meant by references to an interest, in relation to land, and other property. It mirrors what is contained in clause 84 for England and Wales. Therefore, it achieves consistency on both sides of the border.
 Amendment agreed to. 
 Clause 150, as amended, ordered to stand part of the Bill. 
 Clause 151 ordered to stand part of the Bill.

Clause 152 - Applications

Amendments made: No. 261, in page 91, line 29, after 'satisfied', insert 'or discharged'. 
 No. 262, in page 91, line 32, leave out 'person who made the application' and insert 
'prosecutor'.—[Mr. Foulkes.]
 Clause 152, as amended, ordered to stand part of the Bill. 
 Clause 153 ordered to stand part of the Bill.

Clause 154 - Drug trafficking offences

George Foulkes: I beg to move amendment No. 263, in page 92, line 19, leave out paragraph (b).

John McWilliam: With this it will be convenient to take the following: Government amendment No. 264.
 Clause stand part.

George Foulkes: These are technical amendments. Amendment No. 263 deletes the reference in subsection (3)(b) to section 14 of the Criminal Justice (International Co-operation) Act 1990, as the Bill repeals section 14.
 Amendment No. 264 deletes, in effect, subsection (4)(a), and subsection (4)(b), since the Criminal Law (Consolidation) (Scotland) Act 1995 is being repealed, and replaced by the new provisions on money laundering in the Bill. The new insertion is a consequential drafting replacement for subsection (4)(c).

Nick Hawkins: I am not challenging the Minister's explanation, but I am not sure whether I understood him correctly. Perhaps I did not catch what he was saying. I understand that under amendment No. 264, the Government are removing the reference to the Criminal Law (Consolidation) (Scotland) Act 1995 that will be repealed when the Bill is enacted. However, I did not understand his reference to amendment 263, which would leave out subsection (3)(b). Is he saying that the Criminal Justice (International Co-operation) Act 1990 will be repealed by different legislation?

George Foulkes: Amendment No. 263 deletes the reference in subsection (3)(b) to section 14 of the Criminal Justice (International Co-operation) Act 1990, because the Bill repeals that section.

Nick Hawkins: I am grateful to the Minister. Only section 14 of that Act will be repealed by the Bill.
 Amendment agreed to. 
 Amendment made: No. 264, in page 92, line 23, leave out subsection (4) and insert— 
'(4) An offence of conspiring, inciting or attempting to commit an offence falling within subsections (1) to (3) is a drug trafficking offence.'.—[Mr. Foulkes.]
 Clause 154, as amended, ordered to stand part of the Bill. 
 Clause 155 ordered to stand part of the Bill.

Clause 156 - Other interpretative provisions

Amendments made: No. 265, in page 92, line 44, leave out '(11)' and insert '(12)'. 
 No. 266, in page 93, line 8, leave out '(10)' and insert '(11)'. 
 Clause 156, as amended, ordered to stand part of the Bill.

Clause 157 - Rules of court

Question proposed, That the clause stand part of the Bill.

Dominic Grieve: In a spirit of slight frivolity, may I say how good it is to see the rules of court in Scotland using Latin terminology. Since the Woolf reforms south of the border, they have been completely abolished here. To see a nice archaism is extremely pleasant. I can only say that because the hon. Member for Glasgow, Pollok is not in Committee. If I had mentioned it in his presence, he would have tried to eradicate it.

David Wilshire: I hear what my hon. Friend says, but I am one of those people who, when they do not understand something, are willing to admit it. I wonder whether other members of the Committee would do the same. It may be impressive to have a Latin word in the clause. If I think back far enough to my O-level Latin days, I may just manage to work out what the word means. I should find it helpful if a lawyer could explain the meaning of an ''Act of Sederunt'', because I seriously want to know what I am being asked to agree to.

Boris Johnson: I am not a lawyer, but sederunt means ''they sat down''.

Dominic Grieve: I shall wait to be enlightened by the Minister, but I think that the word refers to the rules of court as promulgated in Scotland, which enable the Lord Justice Clerk, or whoever, to make a pronouncement in banco sitting with his fellow judges about what procedural rules will be introduced to implement that part of the Bill.

George Foulkes: An Act of Sederunt is the technical term for civil court rules in Scotland. I hope that helps the Committee. I failed my O-level Latin, so I needed some help with the meaning.
 Question put and agreed to. 
 Clause 157 ordered to stand part of the Bill.

New Clause 2 - Seizure

'(1) If a restraint order is in force a constable may seize any realisable property to which it applies to prevent its removal from Scotland. 
 (2) Property seized under subsection (1) must be dealt with in accordance with the directions of the court which made the order.'.—[Mr. Foulkes.]
 Brought up, read the First and Second time, and added to the Bill.

New Clause 3 - Recall and variation of order

'(1) The prosecutor and any other person affected by an order made under section 127 or 129 may apply to the court to vary or recall the order. 
 (2) On an application under this section the court— 
 (a) may vary the order; 
 (b) may recall the order. 
 (3) But in the case of an order under section 127— 
 (a) if the condition in section 121 which was satisfied was that proceedings were started or an application was made, the court must recall the order on the conclusion of the proceedings or of the application (as the case may be); 
 (b) if the condition which was satisfied was that an investigation was started or an application was to be made, the court must recall the order if within a reasonable time proceedings for the offence are not started or the application is not made (as the case may be).'.—[Mr. Foulkes.]
 Brought up, read the First and Second time, and added to the Bill.

New Clause 4 - Appeals

'(1) If on an application for an order under section 127 or 129 the court decides not to make one, the prosecutor may appeal to the Court of Session against the decision. 
 (2) If the court makes an order under section 127 or 129 the following persons may appeal to the Court of Session in respect of the court's decision— 
 (a) the prosecutor; 
 (b) any person affected by the order. 
 (3) If on an application for an order under section 136 the court decides not to make one, the person who applied for the order may appeal to the Court of Session against the decision. 
 (4) If the court makes an order under section 136, the following persons may appeal to the Court of Session in respect of the court's decision— 
 (a) the person who applied for the order; 
 (b) any person affected by the order; 
 (c) the administrator. 
 (5) The following persons may appeal to the Court of Session against a decision of the court on an application under section (Recall and variation of order)— 
 (a) the person who applied for the order in respect of which the application was made; 
 (b) any person affected by the court's decision; 
 (c) the administrator. 
 (6) On an appeal under this section the Court of Session may— 
 (a) confirm the decision, or 
 (b) make such order as it believes is appropriate.'.—[Mr. Foulkes.]
 Brought up, read the First and Second time, and added to the Bill.

New Clause 6 - Time for making order

'A confiscation order must be made before the court sentences the accused for the offence (or any of the offences) concerned.'.—[Mr. Foulkes.]
 Brought up, read the First and Second time, and added to the Bill.

New Clause 7 - Inadequacy of available amount:

(1) This section applies if— 
 (a) a court has made a confiscation order, 
 (b) the prosecutor applies to the court to discharge the order under this section, and 
 (c) the amount remaining to be paid under the order is less than £1,000. 
 (2) In such a case the court must calculate the available amount, and in doing so it must apply section (J804) as if references to the time the consfiscation order is made were to the time of the calculation and as if references to the date of the confiscation order were to the date of the calculation. 
 (3) If the court— 
 (a) finds that the available amount (as so calculated) is inadequate to meet the amounts remaining to be paid, and 
 (b) is satisfied that the inadequacy is due wholly to a specified reason or a combination of specified reasons, 
 it may discharge the confiscation order. 
 (4) The specified reasons are— 
 (a) in a case where any of the realisable property is situated in Scotland and consists of money in a currency other than sterling, that fluctuations in currency exchange rates have occurred; 
 (b) any reason specified by the Scottish Ministers. 
 (5) The Scottish Ministers may by order vary the amount for the time being specified in subsection (1)(c).'—[Mr. Foulkes.]
 Brought up, read the First and Second time, and added to the Bill. 
 Further consideration adjourned.—[Mrs. McGuire.] 
 Adjourned accordingly at four minutes to Five o'clock till Tuesday 11 December at half-past Ten o'clock.